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11.5 The analysis Having laid out the chart (and this chart will be left at this point although there is more that can be done), we can see two major problem areas, because the chart is structured to lead to the UP through the PP (that is, the elements of the legal rule concerned). We are able to notice at once where there is strength and where there is not. Looking back at Figure 7.32, it can be seen that there are major queries relating to PP 5. This is the PP concerning intention which in s1(1) is the only element of the mens rea. So, unless more certainty can be achieved in this area there is a problem. In addition, PP 2 has a question mark indicating uncertainty. This is the element of the actus reus requiring the dishonest appropriation but Mary alleges she acted in the certainty that Andrew would have lent her the money: in other words she had his permission. We can see that there are many elements of strength stacking up under PP 2 but a key issue is 14—going into Andrew’s room without permission. So clearly we are interested when we turn to the legal analysis in looking at case law dealing with this issue. Although we have tried to counter the problem with 14 by saying in 18 that Mary was wilful about whether she had permission or not, in the circumstances can we allege this? So we should explore the following matters in the case authorities. (a) Actus reus Re: PP 2 • What is the legal meaning of dishonestly? • Does it include believing that you have permission to take something? • What is the test for a reasonable belief that you have permission? Is it according to what other reasonable people would think (an objective test) or is it according to whatever Mary thought—no matter how unreasonable? (A very subjective test.) • Can we argue she had conditional permission to take £20 for a skirt but she spent the money on something else? Does that matter? If she thought Andrew would give permission for the skirt does it matter that she went to the cinema and got a take away meal instead? (b) Mens rea Re: PP 5 Mary said that she did not intend to permanently deprive Andrew of his money. • However, she said she would pay Andrew back on Monday, yet she clearly would have no money until Thursday. Does this matter? • Does this suggest an intention to permanently deprive? Are there cases covering this? As you can see whilst the chart is excellent at its task (factual analysis) it only highlights the areas for legal analysis. Which is why the charting process leads to legal analysis. This is the moment to look for answers at the level of statutory sources and case law which we will do briefly. We will just make a few explorations to indicate how this matter can be pursued.
DOI link for 11.5 The analysis Having laid out the chart (and this chart will be left at this point although there is more that can be done), we can see two major problem areas, because the chart is structured to lead to the UP through the PP (that is, the elements of the legal rule concerned). We are able to notice at once where there is strength and where there is not. Looking back at Figure 7.32, it can be seen that there are major queries relating to PP 5. This is the PP concerning intention which in s1(1) is the only element of the mens rea. So, unless more certainty can be achieved in this area there is a problem. In addition, PP 2 has a question mark indicating uncertainty. This is the element of the actus reus requiring the dishonest appropriation but Mary alleges she acted in the certainty that Andrew would have lent her the money: in other words she had his permission. We can see that there are many elements of strength stacking up under PP 2 but a key issue is 14—going into Andrew’s room without permission. So clearly we are interested when we turn to the legal analysis in looking at case law dealing with this issue. Although we have tried to counter the problem with 14 by saying in 18 that Mary was wilful about whether she had permission or not, in the circumstances can we allege this? So we should explore the following matters in the case authorities. (a) Actus reus Re: PP 2 • What is the legal meaning of dishonestly? • Does it include believing that you have permission to take something? • What is the test for a reasonable belief that you have permission? Is it according to what other reasonable people would think (an objective test) or is it according to whatever Mary thought—no matter how unreasonable? (A very subjective test.) • Can we argue she had conditional permission to take £20 for a skirt but she spent the money on something else? Does that matter? If she thought Andrew would give permission for the skirt does it matter that she went to the cinema and got a take away meal instead? (b) Mens rea Re: PP 5 Mary said that she did not intend to permanently deprive Andrew of his money. • However, she said she would pay Andrew back on Monday, yet she clearly would have no money until Thursday. Does this matter? • Does this suggest an intention to permanently deprive? Are there cases covering this? As you can see whilst the chart is excellent at its task (factual analysis) it only highlights the areas for legal analysis. Which is why the charting process leads to legal analysis. This is the moment to look for answers at the level of statutory sources and case law which we will do briefly. We will just make a few explorations to indicate how this matter can be pursued.
11.5 The analysis Having laid out the chart (and this chart will be left at this point although there is more that can be done), we can see two major problem areas, because the chart is structured to lead to the UP through the PP (that is, the elements of the legal rule concerned). We are able to notice at once where there is strength and where there is not. Looking back at Figure 7.32, it can be seen that there are major queries relating to PP 5. This is the PP concerning intention which in s1(1) is the only element of the mens rea. So, unless more certainty can be achieved in this area there is a problem. In addition, PP 2 has a question mark indicating uncertainty. This is the element of the actus reus requiring the dishonest appropriation but Mary alleges she acted in the certainty that Andrew would have lent her the money: in other words she had his permission. We can see that there are many elements of strength stacking up under PP 2 but a key issue is 14—going into Andrew’s room without permission. So clearly we are interested when we turn to the legal analysis in looking at case law dealing with this issue. Although we have tried to counter the problem with 14 by saying in 18 that Mary was wilful about whether she had permission or not, in the circumstances can we allege this? So we should explore the following matters in the case authorities. (a) Actus reus Re: PP 2 • What is the legal meaning of dishonestly? • Does it include believing that you have permission to take something? • What is the test for a reasonable belief that you have permission? Is it according to what other reasonable people would think (an objective test) or is it according to whatever Mary thought—no matter how unreasonable? (A very subjective test.) • Can we argue she had conditional permission to take £20 for a skirt but she spent the money on something else? Does that matter? If she thought Andrew would give permission for the skirt does it matter that she went to the cinema and got a take away meal instead? (b) Mens rea Re: PP 5 Mary said that she did not intend to permanently deprive Andrew of his money. • However, she said she would pay Andrew back on Monday, yet she clearly would have no money until Thursday. Does this matter? • Does this suggest an intention to permanently deprive? Are there cases covering this? As you can see whilst the chart is excellent at its task (factual analysis) it only highlights the areas for legal analysis. Which is why the charting process leads to legal analysis. This is the moment to look for answers at the level of statutory sources and case law which we will do briefly. We will just make a few explorations to indicate how this matter can be pursued.
ABSTRACT
Looking back at Figure 7.32, it can be seen that there are major queries relating to PP 5. This is the PP concerning intention which in s 1(1) is the only element of the mens rea. So, unless more certainty can be achieved in this area there is a problem. In addition, PP 2 has a question mark indicating uncertainty. This is the element of the actus reus requiring the dishonest appropriation but Mary alleges she acted in the certainty that Andrew would have lent her the money: in other words she had his permission. We can see that there are many elements of strength stacking up under PP 2 but a key issue is 14-going into Andrew’s room without permission. So clearly we are interested when we turn to the legal analysis in looking at case law dealing with this issue. Although we have tried to counter the problem with 14 by saying in 18 that Mary was wilful about whether she had permission or not, in the circumstances can we allege this?
